COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Elder and Fitzpatrick
CRAIG R. SIEBEL, SR.
v. Record No. 2100-95-1 MEMORANDUM OPINION *
PER CURIAM
UNIQUE INTERIOR DESIGN APRIL 9, 1996
AND
LUMBERMENS MUTUAL CASUALTY COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Craig R. Siebel, pro se, on brief).
(William W. Nexsen; Timothy P. Murphy;
Stackhouse, Smith & Nexsen, on brief), for
appellees.
Craig R. Siebel, Sr. (claimant) contends that the Workers'
Compensation Commission (commission) erred in finding that he was
an independent contractor rather than an employee of Unique
Interior Design (Unique). Upon reviewing the record and the
briefs of the parties, we conclude that this appeal is without
merit. Accordingly, we summarily affirm the commission's
decision. Rule 5A:27.
"What constitutes an employee is a question of law; but
whether the facts bring a person within the law's designation, is
usually a question of fact." Baker v. Nussman, 152 Va. 293, 298,
147 S.E. 246, 247 (1929). Generally, an individual "'is an
employee if he works for wages or a salary and the person who
hires him reserves the power to fire him and the power to
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
exercise control over the work to be performed. The power of
control is the most significant indicium of the employment
relationship.'" Behrensen v. Whitaker, 10 Va. App. 364, 367, 392
S.E.2d 508, 509-10 (1990) (quoting Richmond Newspapers, Inc. v.
Gill, 224 Va. 92, 98, 294 S.E.2d 840, 893 (1982)). The
employer/employee relationship exists if the power to control
includes not only the result to be accomplished, but also the
means and methods by which the result is to be accomplished. Id.
at 367, 392 S.E.2d at 510. Unless we can say as a matter of law
that claimant's evidence sustained his burden of proving that he
worked for employer as an employee rather than an independent
contractor, the commission's findings are binding and conclusive
upon us. Tomko v. Michael's Plastering Co., 210 Va. 697, 699,
173 S.E.2d 833, 835 (1970).
On September 29, 1994, claimant sustained a back injury when
he fell off of a ladder while performing work for Unique, a
business owned by claimant's wife. Claimant and his wife
testified that, at the time of claimant's accident, they believed
that claimant was working as an independent contractor for
Unique. Unique did not deduct taxes or social security payments
from claimant's earnings; rather, it treated its workers as
independent contractors by filing 1099 forms for them.
The September 1994 job, at which claimant sustained his back
injury, involved hanging wallpaper in fifty stairwells located in
the buildings of an apartment complex. Claimant's wife asked
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claimant to perform the job. Claimant acknowledged that he was
an experienced wallpaper hanger, and that he had been performing
jobs for Unique for ten years. Claimant's wife did not instruct
claimant on how to hang the wallpaper. She merely provided
claimant with a list of the building numbers and the stairwells
where he needed to hang the wallpaper. She came by the worksite
when she was in the area, but did not inspect the job when
claimant finished. Rather, the head of maintenance employed by
the apartment complex contacted the contractor who hired Unique,
who in turn approved claimant's work. Claimant did not work set
hours. He also testified that his wife had the power to fire
him.
The testimony of claimant and his wife support the
commission's finding that claimant's evidence did not prove that
Unique exercised control over the means and methods used by
claimant to complete the job. Absent this significant element of
the employer/employee relationship, we cannot find as a matter of
law that claimant proved he worked for Unique as an employee
rather than an independent contractor. Accordingly, we affirm
the commission's decision.
Affirmed.
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